School vaccine mandate must apply equally, panel rules

In a last-minute order partially blocking another vaccine mandate, the 9th U.S. Circuit Court of Appeal issued an emergency injunction Sunday, blocking the San Diego Unified School District from requiring students seeking religious exemptions to learn from home.

As long as the school district allows pregnant students to attend in-person schooling unvaccinated, it cannot require religious students to comply with the mandate, a three-judge panel ruled Sunday night.

Rancho Santa Fe attorney Paul Jonna of the Thomas More Society law firm said he was pleased the court granted the injunction to halt the school's mandate, which he called "one of the harshest in the nation."

"San Diego Unified School District cannot treat students better if they seek exemption from vaccination for secular as opposed to religious reasons," Jonna said in a statement Monday. "The COVID regime of secular favorites but religious outcasts must end."

Representing the school district, Mark R. Bresee of Atkinson Andelson Loya Ruud & Romo LLP, said he expects the emergency order "will be short-lived," and the school intends to do away with its pregnancy deferral.

"The district has already taken action to remove the option to request a deferral during pregnancy, and is in the process of notifying the court, so we expect the injunction to be terminated soon," Bresee said. "No pregnancy deferral requests had been received, so the action did not impact any students and, at any rate, the plaintiff is not seeking a deferral but is seeking to be exempted from the mandate."

The petition, filed by a Christian family with a 16-year-old daughter, Jill Doe, who attends Scripps Ranch High School within the San Diego school district, argues the mandate, which bars Doe from participating in extracurricular activities, would doom "her prospects for a college scholarship."

Among other arguments, her attorneys said the Pfizer, Moderna, and Johnson & Johnson vaccines are developed from aborted fetal tissue, and her faith precludes her from taking them.

In addition to a deferral for pregnant students, the school's mandate allows teachers and staff with personal or religious objections to vaccination, to continue working in person, unvaccinated. It also allows a 30-day vaccine deferral period for students who are homeless, migrants, and from military families, according to the petition. Doe v. San Diego Unified School District, 21-cv-01809 (S.D. Cal., filed Oct. 22, 2021).

Partially dissenting, Circuit Judge Sandra S. Ikuta said she would go a step further and keep the injunction in place until all students seeking exemptions, secular and religious, are treated equally.

"I would keep the injunction in effect until the San Diego Unified School District ceases to treat any students (not just pregnant students) seeking relief from the vaccination mandate for secular reasons more favorably than students seeking relief for religious reasons, because any unvaccinated student attending in-person classes poses the same risk to the school district's interest in ensuring a safe school environment," Ikuta wrote.

Jonna said that under the free exercise clause of the First Amendment, which protects citizens' right to practice their religion as they please so long as the practice does not run afoul of public morals or a compelling governmental interest, the San Diego Unified School District cannot treat students better if they seek exemption from vaccination for secular as opposed to religious reasons.

Citing Tandon v. Newsom, a U.S. Supreme Court case he recently won on behalf of churches seeking to hold in-person gatherings during the pandemic, Jonna said a strict scrutiny test under the free exercise clause is triggered as soon as governments or schools treat religious activity differently. Tandon v. Newsom, 593 U. S. (2021).

"The way they determine if two activities are comparable, is by looking at the risks they pose. ... The court determined that religious gatherings pose the same transmission risks as secular gatherings that were allowed," Jonna said. "Here, you're dealing with unvaccinated people; if they're unvaccinated for religious reasons or medical reasons, they pose the same risk to other people."

The injunction issued by Circuit Judges Marsha Berzon, Mark W. Bennett, and Ikuta, follows a Friday ruling by the 9th Circuit temporarily blocking a vaccine mandate in California prisons.